Waterman, Moore and Hays, Circuit Judges. Waterman, C.j. (concurring). Moore, C.j. (concurring).
The National Labor Relations Board seeks enforcement of an order based upon a finding of violation by all the respondents of Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e)*fn1 and by Local No. 28 and its President, Mell Farrell, of Section 8(b) (4) (ii) (A) and (B) of that Act, 29 U.S.C. 158(b) (4) (ii) (A) and (B).*fn2 For reasons which are described hereafter we deny the Board's petition and set aside its order.
This case involves a controversy which arose in connection with the construction of a new building for Alexander's Department Store in New York City. George A. Fuller Company was the general contractor. Fuller subcontracted the heating, ventilating and air conditioning work to Kerby Saunders, Inc. and Kerby in turn engaged Johnson Service Company of Milwaukee, Wisconsin and National Sheet Metal Works, Inc. of Brooklyn, New York. Johnson was to furnish a temperature control system, including dampers*fn3 for the air conditioning, and National was to install the dampers and other sheet metal products. Kerby was a member of the Mechanical Contractors' Association of New York, Inc. and National was a member of the Sheet Metal Contractors Association of New York, Inc. Both Mechanical and Sheet Metal Associations have collective bargaining agreements with Local 28, Sheet Metal Workers' International Association, AFL-CIO, which represents journeymen and apprentice sheet metal workers in the New York City area. Kerby and National, as members of the Associations, are, of course, parties to the collective agreements between Local 28 and the Associations. The employees of Johnson's Milwaukee plant are represented not by Local 28 but by Local 24, a sister local affiliated with the same international. Johnson consequently has no agreement with Local 28.
In Local 28's collective agreements with the Associations there is a clause designated Addendum B which sets forth a list of "fabricated items" and provides that these items are "to be manufactured by a Contractor having a signed Agreement with Local Union No. 28." Among the listed items are "dampers."
In the course of the construction of the Alexander building, Farrell, President of Local 28, told Fuller's construction superintendent that he, Farrell, could not find out who was manufacturing the dampers which Kerby was using on the job and that he "might have to pull the men off the job" if he didn't get this information within the next few days. Fuller's superintendent urged Kerby to get this matter straightened out and Kerby in turn warned Johnson. Johnson was providing the dampers, some of which were fabricated in Milwaukee and some in New York by Local 28 members.
Kerby's project manager arranged for a meeting between Farrell and the employers involved. At this meeting Farrell insisted that unless all dampers were made by Local 28 members he would "take the men off the job the next day."
The dispute was referred to the Joint Adjustment Board, composed of union representatives and employers who were members of the Associations. That Board urged Kerby and National to comply with Addendum B. Thereafter National's foreman on the job refused to accept a shipment of dampers from Johnson's Milwaukee plant. Kerby also refused to accept the Johnson dampers.
Johnson substituted dampers fabricated by members of Local 28 but filed charges with the National Labor Relations Board, alleging violation of Section 8(e) and Section 8(b) (4) (ii) (A) and (B) of the National Labor Relations Act.
The Board held that Addendum B contravened the provisions of Section 8(e) and that by threatening to strike unless the contractors ceased to use Johnson's dampers, the union and Farrell violated Section 8(b) (4) (ii) (A) and (B).
Since the charges were filed more than six months after the parties entered into the collective agreement of which Addendum B is a part, the Board did not find an unfair labor practice in the original negotiation and execution of Addendum B, but held that the subsequent application and enforcement of the clause in connection with the purchase of the dampers was a "reaffirmation" and constituted a fresh violation of Section 8(e).
We accept the Board's determination that the original inclusion of Addendum B in the collective agreements cannot be made the basis for the finding of an unfair labor practice because it occurred more than six months before the filing of the charges. National Labor Relations Act, Section 10(b), 29 U.S.C. § 160(b);*fn4 Local Lodge No. 1424 v. National Labor Relations Board, 362 U.S. 411, 80 S. Ct. 822, 4 L. Ed. 2d 832 (1960).
The briefs discuss the exact language of Addendum B and respondents concede that read literally the clause "on the face" appears to have a secondary purpose. The Board claims that it is a typical hot cargo agreement.
The literal terms of Addendum B would be important, perhaps even determinative, if the unfair labor practice of which defendants have been found guilty were the original inclusion of the clause in the collective agreements. But, as has been pointed out, the Board concedes that it cannot, consistently with the provisions of Section 10(b), base its case against these respondents on the original inclusion of the Addendum. The Board cannot hold subsequent application and enforcement of the clause to be an unlawful "reaffirmation" unless the situation to which the clause is subsequently applied is itself violative of the Act. A "reaffirmation" in the sense of a declaration of intent to enforce the clause at a suitable time would not constitute an unfair labor practice which could properly be separated from the act of inclusion. See Local Lodge No. 1424 v. National Labor Relations Board, supra. A resort to the clause by the union in a situation to which the clause was irrelevant would be equally innocuous and, like a mere declaration of intent to enforce, would not effect a legally significant "reaffirmation." In the present case the Board could find in the union's reliance on Addendum B an unlawful "reaffirmation" of that clause and a violation of the Act only if the circumstances in which the union sought enforcement of the clause amounted to an attempt to control "hot cargo" in a ...